Editorial: Corporations can’t hide behind First Amendment

[unhappycamper]

http://www.bostonglobe.com/opinion/editorials/2016/03/21/corporations-can-hide-behind-corporate-grab-first-amendment/AKGEveSXc94vrbsmqMwgpK/story.html

Corporations can’t hide behind First Amendment
March 21, 2016

It’s not surprising that manufacturers are fighting a 2010 law that requires them to disclose whether the materials in their products may be linked to African warlords. What’s surprising is how they’ve fought the requirement, how successful their strategy has been so far, and what the story says about the alarming trends in First Amendment law.

Instead of lobbying Congress to change the law, the National Association of Manufacturers and other business groups went to court and argued that the rule trampled firms’ First Amendment rights by compelling them to speak — specifically, to say whether they use “conflict minerals” mined in the Democratic Republic of the Congo. Incredibly, a majority on a divided three-judge panel bought it, and struck down the rule in 2014 and again last year.

This unfortunate tactic — citing the First Amendment to wriggle out of disclosure requirements —is making a comeback. The tobacco industry used the First Amendment to get out of printing graphic health warnings on cigarettes. In another case, employers convinced a federal appeals court that mandatory workplace rights disclosures were tantamount to forced speech. The conflict minerals case is on hold for now, as the Securities and Exchange Commission considers its options, but if the ruling stands, it would be a sweeping expansion of corporate free speech rights.

The notion that the government can’t compel speech is a sound one — it’s the reason citizens can’t be forced to say the Pledge of Allegiance, for instance. But the apparent willingness of some judges to apply that concept to factual disclosures by commercial entities threatens a huge swath of consumer and investor protections. Former White House official Cass Sunstein, writing about the conflict-mineral case, warned that siding with the companies would call into question a range of mandatory requirements, from fuel-economy labels on cars to disclosures on credit card bills.